1. The appellants are the independent processors of textiles. They filed an application dated 15-12-1998 with reference to the Notification No. 42/98-C.E. (N.T.) dated 10-12-1998 for the purpose of fixation of annual capacity under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. The Commissioner of Central Excise, Delhi-II vide his Order-in-Original dated 3/4-2-2000 fixed the annual capacity of production of the appellants at Rs. 753.84 lakhs. In order to arrive at this annual capacity of production, the Commissioner included the length of the galleries at each end of the five chambers of the Hot Air Stenter used by the appellants in the process of heat setting and drying of the fabrics. Consequently in his order he determined the ACP of the appellants which lead to the liability of differential duty of Rs. 5,67,1687- on the appellants.

2. The party filed an appeal and Stay petition against the aforestated order of the Commissioner. The Tribunal while disposing of their Stay petition vide Order No. S/493/2000-NB (SM), dated 10-7-2000 [2000 (121) E.L.T. 779 (Tribunal)] followed the earlier decision of the Tribunal in C.M. Paints (P) Ltd. v. CCE, Delhi – 2000 (120) E.L.T. 829 (T) and directed the appellants to deposit the entire amount of Rs. 5,67,168/- within eight weeks from that date. The matter was listed for reporting compliance on 21-9-2000.

3. On 21-9-2000 when the matter was called for reporting compliance by the appellants, Shri Y.K. Kumar, Advocate for the party submitted that the South Regional Bench of the CEGAT has taken contrary view in the matter. The decision of the SRB in the case of R.M. Gupta Textiles (P) Ltd. and Ors. v. CCE, Hyderabad-II is reported in – 2000 (40) RLT 234 (CEGAT). The ld. Advocate for the appellants placed further reliance on the decision in EID Parry (I) Ltd. v. CCE, Madras -1996 (84) E.L.T. 444 (T) in which it is held that in case subsequently a decision of the Tribunal has been given setting the issue in question in favour of the assessee, that would be sufficient ground to modify the earlier direction and to grant total stay to the appellants. In this decision the Tribunal modified their earlier direction for pre-deposit a part of the demanded amount and granted total stay to the appellants on these grounds. Accordingly, the appellants have filed a Miscellaneous petition for modification of the earlier order of the Bench to deposit whole of the amount of differential duty. The ld. Advocate for the appellants submits that his clients have filed a Misc. petition for modifying the earlier Stay order dated 10-7-2000 of the Bench directing them to deposit the entire amount of differential duty and they request for waiver of the amount. Shri V.M. Udhoji, JDR for the Revenue does not dispute that there are contra decision on the issue one by the Northern Bench and the other by the Southern Bench. In the decision of the Northern Bench reported in C.M. Paints (P) Ltd. v. Commissioner of C. Ex. & Cus., New Delhi – 2000 (120) E.L.T. 829 (T), it is held that the length of the galleries attached to the stenter is to be included for the purpose of determining the annual capacity of production. The Southern Bench in the case of RM Textiles (Supra) has taken a contra view and has held that the length of the galleries would not be includible for determining the annual capacity of production of the Hot stenter.

4. On careful consideration of the above submissions, it does prima fade appear that there are contra decisions on the subject by the Northern Bench and the Southern Bench of the Tribunal. Consequently following the ratio of the decision of the CEGAT in EID Parry (Supra) the Stay Order No. S/493/2000-NB (SM), dated 10-7-2000 [2000 (121) E.L.T. 779 (Tribunal)] is modified and the appellants are allowed total waiver from making the pre-deposit of the aforestated amount. Its recovery is also stayed till the disposal of the appeal.

5. The matter will be called for final disposal on 15-11-2000.

6. The Misc. petition filed by the appellants is disposed of in above terms.